We have previously discussed the irony of Senator Dianne Feinstein expressing outrage over the fact that her staff was subject to warrantless CIA surveillance. Feinstein’s outrage over the spying on her staff is only matched by her lack of outrage over the spying on the rest of America. However, she does have an good point to raise with regard to the role of one lawyer who seems to be dancing along the edge of both ethical and legal standards. He is the acting CIA general counsel Robert Eatinger who is believed to have played a large role in the programs and actions under investigation. Eatinger is well known to civil libertarians as someone involved in past abuses by the agency.
The CIA is accused of searching the computers used by the Senate Intelligence Committee to investigate harsh interrogation techniques and removed previously available documents from the system. Almost a 1000 documents were deleted or removed in part from the computers. This obviously violated the separation of powers and core Article I authority. It also raises possible violations, as Feinstein states, under Fourth Amendment, the Computer Fraud and Abuse Act and Executive Order 12333.
Eatinger is specifically accused of “a potential effort to intimidate” staffers. Eatinger’s role is particularly problematic because he has been the subject of congressional investigation over a variety of abuses and, as Feinstein notes, “[h]e is mentioned by name more than 1,600 times in our study.” She raises a good point of the obvious conflict of interest for Eatinger: “And now this individual is sending a crimes report to the Department of Justice on the actions of the same congressional staff who researched and drafted a report—which details how CIA officers, including the acting general counsel himself, provided inaccurate information to the Department of Justice about the program.” Of course, if Eatinger is ok with destroying evidence and violating human rights, the ethics rules may not offer much of a barrier for him.
Eatinger holds an infamous position for civil libertarians and many lawyers in these scandals. He was a lawyer in the C.I.A.’s Counterterrorism Center when the agency was running the detention and interrogation program that is the subject of alleged human rights and international law violations. In 2005, the CIA destroyed videotapes of brutal interrogations of detainees. Eatinger had been one of two lawyers to approve their destruction. As I expressed at the time, it was astonishing that no one was disciplined let alone prosecuted for the destruction of the evidence. One official admitted that the CIA wanted to destroy evidence that could be used in their own criminal prosecution. Instead of being prosecuted, people like Eatinger were promoted.
John Rizzo, former acting CIA general counsel, has defended Eatinger. In Rizzo’s 2013 memoir, “Company Man,” he recounts how Eatinger learned that Jose Rodriguez, head of the Counterterrorism Center, had ordered the destruction of videotapes of torture over the objections of senior CIA officials and the George W. Bush White House. Eatinger was upset but Rodriguez was citing Eatinger’s legal advice. The book says that Eatinger and another lawyer had told Rodriguez he was not barred from destroying evidence, but he never expressly authorized it. I fail to see the distinction since I view the destruction as raising serious questions of criminal conduct.
In 2009, Judge Royce C. Lamberth issued an opinion that accused Eatinger, Rizzo, Radsan and other CIA employees of fraud for allegedly withholding information on a CIA operative accused in a civil case. Now his name has come up again with regard to spying on Congress and an effort to intimidate staffers investigating, among other people, Eatinger himself.
Eatinger’s career speaks volumes about the lack of serious deterrent or accountability among intelligence officials. He is the very personification of an intelligence community that has become dangerously independent and unchecked. It was only a matter of time before that sense of impunity would result in the agency defying Congress itself.
The latest scandal shows the sense of absolute immunity enjoyed by intelligence officials — that sense is the result of years of acquiescence and passivity by Congress and the courts. If Eatinger is denounced as the manifestation of the arrogance in the intelligence community, Congress has been the enabler of such attitudes. Even in the face of perjury, Congress (and specifically Feinstein’s committee) has looked the other way and scrupled efforts to investigate.
Ironically, civil libertarians have not been particularly hopeful about the report from a committee long viewed as a rubber stamp for the intelligence agencies. Yet, the very fact that we are debating how this is going to turn out shows the degree to which the “fourth branch” now challenges our constitutional system, as discussed in an earlier column. The CIA is pushing back on this scandal and defending Eatinger’s role combating an investigation into his own conduct and those of his colleagues. This is after the agency has delayed the release of a report on these programs by controlling classified material and witnesses.
The ethics rules allow government lawyers to continue to work in areas of conflicts as long as they have a waiver from their agency — an often meaningless distinction in small legal shops like the CIA General Counsel’s office. Yet, it will be interesting to see if Eatinger received such a written waiver from the CIA director. In this case, it is highly troubling to have Eatinger involved in any aspect of the investigation when he could face personal repercussions from the conclusions of the Committee. If a waiver was given, it was a poor decision by the CIA director that itself raises questions over his judgment and commitment to the resolution of these serious allegations.
I have litigated the issue of such conflicts of interest by agency lawyers, including the ongoing controversy in the World Bank case. In this case, Eatinger is involved in seeking a criminal investigation of investigators who have been questioning his role in not just an alleged torture program but the destruction of evidence of torture. To ask for a waiver in such a case would show a lack of professional judgment. To sign such a waiver would show an equal lack of judgment.
CIA Director John Brennan scoffed at the notion that the agency would commit such actions as “beyond the scope” of reason. He insists that they would just not do such a thing. Someone needs to remind him that the CIA is being investigated for torture, evidence destruction, and other major crimes. The “trust us we are the CIA” approach may not work particularly well in this case, even if it has apparently succeeded for years before this very Committee.
Justin, what is separating you from a terrorist from another nation? What happened on 9/11 was horrific. I don’t think anyone here would deny that fact. So what is the response by this govt. and its owners to 9/11?
The legal response would have been a criminal investigation, trials and punishment of the guilty. Instead, the govt. devised torture, Gitmo–a place to imprison people w/o trial or little hope of legal recourse, mass surveillance on our own population, and mass murder. Mass murder took place in Iraq, a war of aggression on a nation which had nothing to do with 9/11. The people responsible for the deaths of over 100,000 civilians and our soldiers were the people who went to war on false and illegal pretenses. Where is your outrage about that mass murder?
Now you say, in contradiction to our law, that the US has every right to torture other people, to kill them to take revenge for 9/11. The people who committed 9/11 were acting in revenge on the people of the US. It seems to me that those terrorist and those American citizens that say we may torture and kill the innocent hold the very same mindset and values.
US law says there may be no torture, even in extraordinary circumstances. US law says that you do not get to kill civilians in any way, not a war of aggression like Iraq and Afghanistan, nor a phony war on “terror”. Nor does a president, let alone his real boss, the shadow govt., get to target individuals on their say so for execution.
Why are you willing to break faith with your own laws? How does you proclamation about your nation’s “right” to torture and assassinate others differ from the people who killed people on 9/11?
It should disturb and scare you that intelligence officials are committing all kinds of lawless acts both in the US and abroad. What Ross pointed out is actually happening. The rights of US citizens are effectively abridged. The lives of others mean nothing to those who run things and their minions. Every time you side with their right to take away your rights and the lives of others, you aid in the destruction of your own society.
Accuracy is a big part of the equation, punishing the wrong people may make Americans feel better but it is counter-productive and creates even more enemies which makes us less safe. It also increases the risk of a future attack from groups that were not real enemies to the United States.
Using the government’s own records, the ACLU compared “terrorism” investigations vs. “terrorism” prosecutions during the Bush years and the rate is less than 10%. Over 90% of the “terrorism” laws are being used on “non-terrorism” and even “non-criminal” investigations and searches. The U.S. Government is even attacking the free press that try to educate American voters.
Virginia lists African-American college students at all black colleges as a potential threat at their Fusion Center. Other state fusion centers list homosexuals, environmentalists, Quakers, Tea Party members, animal rights groups, etc. – using terrorism laws that violate the Bill of Rights.
Imagine the treatment of foreign citizens if this is happening to Americans living inside the United States – we are making more enemies every day from people who supported us.
Max-1
Ok, I’ll concede that you established that you are fluent in Animal Farmology. As far as animals having four legs, did you loose a pet when you were a child and never got over it or something? You take umbrage at my use of the word animal to describe the terrorist, but say nary a word of compassion/concern for the 3000 who died on 9/11 and the 5000 who died in Iraq and Afghanistan. Ummm. Interesting.
Most intelligence personnel are probably very good people but these subordinates take orders from their superiors – if their superiors violate their oath of office (their supreme loyalty oath) then the subordinates and private contractors follow those orders.
The Founding Fathers, who dealt with greater threats than any of these inteligence personnel, knew that “human nature” over thousands of years never changes – so they created an “indirect” loyalty oath to the constitutional rule of law.
This “indirect” loyalty oath is not to the nation directly and not to the people directly – and it is designed for wartime and even terrorism, without a Patriot Act and without secret courts.
The Supremacy Clause and the Ninth Amendment were the supreme law of the land when all these agencies were created and they should have been built on a constitutional “foundation” when they were created.
The question is: How do we return these agencies to their proper role of operating within the Bill of Rights and U.S. Constitution if the agency leadership has no allegiance to their own supreme loyalty oath? Shouldn’t loyalty be the top attribute for any intelligence leadership wielding so much power with so much secrecy – we have had intelligence leaders with almost contempt for the Bill of Rights and U.S. Constitution giving orders to subordinates!
Justin L. Petaccio
a bear can walk on two legs, a kangaroo can walk on two legs, ducks, geese, birds walk on two legs.
===================
Oedipus solved the riddle by answering: Man—who crawls on all fours as a baby, then walks on two feet as an adult, and then uses a walking stick in old age.
s/b
because a Democrat from his PARTY does it
Jill:
“Why do you believe people who torture and murder others have a good will towards you and your nation. Why?
Very good question.
Bears repeating…
FYI,
I’ve been calling my House Rep. who, during the Bush Administration, enjoined former Congressman, Dennis Kuchinich in the 35 articles of Impeachment. Some of those articles repeat in the Obama Administration and now, it appears, there may be obstruction to add to the list. Spying, torture, murder (aka assassinations sans due process). I’m asking of him to drop the idea that because a Democrat from his does it, it still is illegal and until he acts, I will not re elect him to represent me and instead, elect someone willing to defend and support ALL of our Rights, not just the ones a Republican Administration violates.
Four legs good, two legs better! All animals are equal, but some animals are more equal than others.
The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.
Several of them would have protested if they could have found the right arguments.
All men are enemies. All animals are comrades.
Justin,
Call the Humane Society.
We’re trying to get the wo/men who craft Law to understand their Oath is binding.
Whereas some prefer to follow the Law of the Land…
… Others prefer to shirk the law and follow the wo/men who make up Law at their whim.
Nice…
p.s.
Isn’t it a well known and documented FACT that Iraq had nothing to do with 9/11 and the ties to AQ were fronted by the US and GB? So if our troops were in Iraq defending what, again? Who’s Liberty did our “shock and awe” terrorize?
Good Night.
a bear can walk on two legs, a kangaroo can walk on two legs, ducks, geese, birds walk on two legs.
We are a nation of men (women), who create laws to separate us from the animals.
How about the human animal? A good argument can be made for all 3.
Whereas animals walk on four legs and humans on two…
… Read Animal Farm.
To dehumanize a person… That’s how evil justifies itself.
Justin,
Are we a Nation of Laws or are we a Nation of men?
Or are we animals?
I understand and appreciate the concern of some about torture used by our government. But I want to ask those who get exercised over the use of torture on animals (terrorist) who would not hesitate to sever our head from our body, why they don’t get equally exercised over the tragic loss of 3000 Americans on 9/11 or the loss of 5000 brave Americans who sacrificed their lives in Iraq and Afghanistan to protect our liberties. And for those who would condemn President G.W. Bush for using waterboarding, President Obama is conducting his quiet drone program in Afghanistan and Pakistan killing terrorist but also killing innocent men, women and children. President Obama DOES NOT torture anyone, he just kills them.
Thanks, Darren. I kept revising, thinking that one of them would be accepted.
Anonymously Posted
I retrieved those comments out of the WordPress Vortex of Doom™
Folks, refer above for his comments.
I’ve tried to post three very similar comments.
“Your nation is not a democracy. It is run by thugs.”
True and true.
“Campaign created by Daniel Ellsberg”:
http://www.credomobilize.com/petitions/tell-congress-investigate-nsa-abuses-and-protect-our-constitutional-rights
The petition has 92,473 signatures.